IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT HOHENSTEIN, 

Plaintiff,

Case No. 2:12-cv-46

v. JUDGE GREGORY L. FROST

Magistrate Judge Mark R. Abel

MGC MORTGAGE, INC., et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of the following filings: a motion for a

temporary restraining order (ECF No. 4) filed by Plaintiff, Robert Hohenstein; a memorandum in

opposition (ECF No. 9) filed by Defendants, MGC Mortgage, Inc. and Dovenmuehle Mortgage,

Inc.; and a reply memorandum (ECF No. 10) filed by Plaintiff. For the reasons that follow, this

Court finds the motion not well taken.

I. Background

According to the complaint,1

 Plaintiff, Robert Hohenstein, is a homeowner who resides in

Pataskala, Ohio. Plaintiff executed a promissory note and mortgage related to his Pataskala

property. He alleges that he made payments for years to First NLC Financial Services, LLC,

which did business as The Lending Center. Around October 2010, however, Defendant MGC

Mortgage, Inc. (“MGC”) purportedly acquired the note and mortgage. Plaintiff asserts that

because MGC never provided him with notice of the transfer of the note and mortgage, he kept

1

 Any findings of fact related to this Opinion and Order are not conclusive given that

“findings of fact and conclusions of law made by a district court in granting [injunctive relief]

are not binding at a trial on the merits.” United States v. Edward Rose & Sons, 384 F.3d. 258,

261 (6th Cir. 2004) (citing University of Texas v. Camenisch, 451 U.S. 390 395 (1981)).

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making payments to his prior mortgage servicer. At some point, Plaintiff apparently learned of

the transfer and contacted MGC, which informed him that he was three payments behind in his

mortgage. MGC then transferred the note and mortgage to Defendant Dovenmuehle Mortgage,

Inc. (“Dovenmuehle”). Plaintiff asserts that he was again provided no notice of a transfer. A

state court foreclosure proceeding culminated in a scheduled February 3, 2012 sheriff’s sale of

Plaintiff’s property.

Plaintiff initiated the instant action on January 17, 2012. In a six-count complaint, he

asserts claims against MGC for violation of 12 U.S.C. § 2605(c), 15 U.S.C. § 1641(g), and 15

U.S.C. § 2605(b), as well as claims against Dovenmuehle for violation of 12 U.S.C. § 2605(c)

and 15 U.S.C. § 1641(g). (ECF No.2 ¶¶ 20-40.) Hohenstein also seeks temporary injunctive

relief in the first count of his complaint, and on January 18, 2012, Plaintiff filed a motion for a

temporary restraining order to stop the scheduled sheriff’s sale. (ECF No. 4.) Pursuant to S. D.

Ohio Civ. R. 65.1(a), this Court therefore held an informal preliminary telephone conference

with the parties on January 19, 2012. Because the parties elected to proceed on briefing and

without the presentation of testimony, the Court set an expedited briefing schedule on the

injunctive relief motion. (ECF No. 7.) The parties have completed briefing on the motion,

which is now ripe for disposition.

II. Discussion

A. Standard Involved

In considering whether injunctive relief is warranted, this Court must consider (1)

whether Plaintiff has demonstrated a strong likelihood of success on the merits; (2) whether

Plaintiff will suffer irreparable injury in the absence of equitable relief; (3) whether the

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injunction would cause substantial harm to others; and (4) whether the public interest is best

served by granting the injunction. Cooey v. Strickland, 589 F.3d 210, 218 (6th Cir. 2009) (citing

Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007); Ne. Ohio Coal. for Homeless & Serv.

Employees Int'l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006)). As the

Sixth Circuit has explained, “ ‘[t]hese factors are not prerequisites that must be met, but are

interrelated considerations that must be balanced together.’ ” Id. (quoting Mich. Coal. of

Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)).

B. Analysis 

Defendants correctly argue that Plaintiff is not entitled to temporary injunctive relief on

numerous grounds. This Court agrees.

Federal cases such as this that arise out of state foreclosure actions present a threshold

question of whether the state court proceeding has concluded. Review of the state court

foreclosure case docket submitted as an attachment to Defendants’ memorandum in opposition

indicates that Plaintiff lost in the state court and that a judgment entry of foreclosure issued. An

order of sale followed. Plaintiff did not appeal, but filed an unsuccessful motion for

reconsideration in the common pleas court. The sheriff’s sale is scheduled for February 3, 2012,

and in the event of a sale, there will be a confirmation of sale filed with the state court.

Such a scenario may invoke the Rooker-Feldman doctrine. Recently, a judicial officer in

the Northern District of Ohio addressed the application of this doctrine in a case that similarly

arose from a state foreclosure proceeding and in which a plaintiff sought relief related to alleged

fraud. That judicial officer explained:

As a threshold matter, this Court cannot void the judgment of foreclosure. 

Federal district courts do not have jurisdiction over challenges to state court

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decisions even if those challenges allege that the State court's action was

unconstitutional. See District of Columbia Court of Appeals v. Feldman, 460 U.S.

462, 483 n. 16, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co.,

263 U.S. 413, 415–16, 44 S.Ct. 149, 68 L.Ed. 362 (1923). Federal appellate review

of state court judgments can only occur in the United States Supreme Court, by

appeal or by writ of certiorari. Id. Under this principle, generally referred to as the

Rooker–Feldman Doctrine, a party losing his case in state court is barred from

seeking what in substance would be appellate review of the state judgment in a

United States District Court based on the party’s claim that the state judgment itself

violates his or her federal rights. Johnson v. DeGrandy, 512 U.S. 997, 1005–06, 114

S.Ct. 2647, 129 L.Ed.2d 775 (1994). Federal jurisdiction cannot be invoked merely

by couching the claims in terms of a civil rights action. Lavrack v. City of Oak Park,

No. 98–1142, 1999 WL 801562, at *2 (6th Cir. Sept. 28, 1999); see Valenti v.

Mitchell, 962 F.2d 288, 296 (3d Cir. 1992).

The United States Sixth Circuit Court of Appeals has applied two elements

to a Rooker[-]Feldman analysis. First, in order for the Rooker–Feldman doctrine to

apply to a claim presented in federal district court, the issue before the court must be

inextricably intertwined with the claim asserted in the state court proceeding. Catz

v. Chalker, 142 F.3d 279, 293 (6th Cir. 1998); see Tropf v. Fidelity National Title

Insurance Co., 289 F.3d 929, 937 (6th Cir. 2002). “Where federal relief can only be

predicated upon a conviction that the state court was wrong, it is difficult to conceive

the federal proceeding as, in substance, anything other than a prohibited appeal of

the state court judgment.” Catz, 142 F.3d at 293. The Rooker–Feldman doctrine

applies when the party losing his case in state court files suit in federal district court

seeking redress for an injury allegedly caused by the state court’s decision itself. 

Coles v. Granville, 448 F.3d 853, 857–59 (6th Cir. 2006). Second, the

Rooker–Feldman doctrine precludes a district court’s jurisdiction where the claim

is a specific grievance that the law was invalidly or unconstitutionally applied in

plaintiffs’ particular case as opposed to a general constitutional challenge to the state

law applied in the state action. Id.

In the present action, Plaintiff essentially questions the state court’s decision

granting a foreclosure and sale. Any review of federal claims asserted in this context

would require the Court to review the specific issues addressed in the state court

proceedings against him. This Court lacks subject matter jurisdiction to conduct

such a review or grant the relief as requested. Feldman, 460 U.S. at 483–84 n.16;

Catz, 142 F.3d at 293.

Dunn v. Clunk, No. 1:11 CV 2075, 2011 WL 4730406, at *1-2 (N.D. Ohio Oct. 7, 2011). This

same rationale might apply in the instant case where, in order to grant relief on the claims

Plaintiff asserts, or at least most certainly on the Count I claim for temporary and permanent

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injunctive relief, this Court would be called upon to revisit and invalidate the state courts’

foreclosure decision. See King v. CitiMortgage, Inc., No. 2:10-cv-01044, 2011 WL 2970915, at

*5 (S.D. Ohio July 20, 2011) (applying Rooker-Feldman to a count that sought to declare a

foreclosure void, but not to other counts targeting fraud in the procurement of the foreclosure).

Despite asking this Court to stop the execution of the state court judgment, Plaintiff

argues that he “has made no allegation that the common pleas court incorrectly applied the law

to his case, or that the common pleas court was mistaken in rendering judgment against him. 

Rather, Plaintiff alleges Defendants’ independent acts caused him damages as alleged in the

complaint.” (ECF No. 4, at 9.) This effort to evade application of Rooker-Feldman tracks the

rationale behind some judicial officers declining to apply the Rooker-Feldman doctrine in select

foreclosure cases. For example, in Fletcher v. Federal National Mortgage Association, No.

3:11cv00083, 2011 WL 5175611 (S.D. Ohio Oct. 4, 2011), a judicial officer from this District

rejected the contention that Rooker-Feldman applied. The Fletcher magistrate judge focused on

the source of the alleged injury at issue, explaining:

The Rooker–Feldman Doctrine prevents federal district courts from exercising

appellate jurisdiction over state court judgments and applies to cases, “brought by

state-court losers complaining of injuries caused by state-court judgments rendered

before the district court proceedings commenced and inviting district court review

and rejection of those judgments.” Exxon–Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Accordingly, federal

district courts lack jurisdiction under Rooker–Feldman when (1) a case is brought by

parties unsuccessful in state court, (2) the plaintiff complains of injuries caused by

state-court judgments, (3) the state-court judgment was rendered prior to the district

court proceedings commencing, and (4) plaintiffs invite the district court to review

and reject those state-court judgments. Id.

Because there is little question that Plaintiffs were unsuccessful in their statecourt claims, the state-court judgments were rendered prior to proceedings

commencing in this Court, and that Plaintiffs plainly seek rejection of those

judgments, the sole question is whether the injuries of which Plaintiffs complain

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were caused by the state-court judgments.

Defendants correctly point out that the key to such a determination is the

source of the alleged injuries. (Doc. # 18 at 127). However, they mistakenly rely on

an unpublished opinion (Kafele v. Lerner, Sampson & Rothfuss, L.P.A., 161 Fed.

Appx. 487, 490, 2005 U.S.App. LEXIS 28680, *8 (6th Cir. 2005)) to support their

determination that Plaintiffs are complaining of injuries caused by the state-court

judgments. (Doc. # 18 at 7). The Eastern Division of the United States District

Court for the Southern District of Ohio held Kafele to have limited precedential

value because (1) unpublished decisions are not controlling authority and (2) Kafele

failed, “to recognize a significant change in circuit law wrought by the Supreme

Court's ruling in Exxon Mobile, earlier the same year.” Miller v. Countrywide Home

Loans, Inc. 747 F. Supp. 2d 947, 957 (S.D. Ohio 2010) (citations omitted).

In order to provide guidance in the wake of Exxon–Mobil Corp., the United

States Court of Appeals for the Sixth Circuit explained:

Federal jurisdiction is proper if a federal plaintiff presents an

independent claim, “albeit one that denies a legal conclusion that a

state court has reached in a case to which he was a party.” Id. [ Exxon

Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293, 125

S.Ct. 1517, 161 L.Ed.2d 454 (2005) ] (quoting GASH Assocs. v.

Rosemont, 995 F.2d 726, 728 (7th Cir.1993)). In the wake of Exxon

Mobil Corp., we recently adopted a Fourth Circuit rule to

differentiate between claims attacking state-court judgments, which

are barred by Rooker–Feldman, and independent claims, over which

lower federal courts have jurisdiction. The focus, we held, must be on

... the source of the injury that the plaintiff alleges in

the federal complaint. If the source of the injury is the

state court decision, then the Rooker–Feldman

doctrine would prevent the district court from

asserting jurisdiction. If there is some other source of

injury, such as a third party's actions, then the plaintiff

asserts an independent claim.

 McCormick [v. Braverman ], 451 F.3d [382] at 393 [(6th. Cir.2006)]. 

Thus, a complaint in which the plaintiff contends he was injured by

the defendants, rather than by the state court decision itself, is not

barred by Rooker–Feldman, even if relief is predicated on denying

the legal conclusion reached by the state court.

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Brown v. First Nationwide Mortg. Corp., 206 Fed.Appx. 436, 439 (6th Cir.2006).

The Sixth Circuit Court addressed a situation similar to the matter sub judice

in Todd v. Weltman, Weinberg & Reis Co., L.P .A., 434 F.3d 432 (6th Cir. 2006). In

Todd, the Plaintiff filed a complaint in the U.S. District Court for the Southern

District of Ohio claiming that Defendant had filed a false affidavit as part of a

garnishment action Defendant had previously executed against Plaintiff in Ohio state

court. Id. At 435. The Defendant filed a motion to dismiss arguing, inter alia, that

the Rooker–Feldman Doctrine barred jurisdiction. Id. At 434.

Applying the Supreme Court’s holding in Exxon–Mobile, the Sixth Circuit

stated:

The Rooker–Feldman doctrine does not preclude jurisdiction

over Plaintiff’s claim. Defendant in the instant case claims this Court

lacks subject matter jurisdiction because Plaintiff’s federal claim is

inextricably intertwined with the Ohio state court decision that

Defendant's affidavit was valid. This argument ignores the fact that

Plaintiff here does not complain of injuries caused by this state court

judgment, as the plaintiffs did in Rooker and Feldman. Instead, after

the state court judgment, Plaintiff filed an independent federal claim

that Plaintiff was injured by Defendant when he filed a false affidavit. 

This situation was explicitly addressed by the Exxon–Mobil Court

when it stated that even if the independent claim was inextricably

linked to the state court decision, preclusion law was the correct

solution to challenge the federal claim, not Rooker–Feldman. While

Defendant is technically correct that this guidance was not essential

to the holding on the facts of Exxon Mobil, as that case dealt with

parallel state and federal proceedings, the Supreme Court went

beyond the facts of the case to give clear instructions to the circuits

on how to address additional factual situations. To follow the

reasoning of Defendant would be to ignore these unambiguous

directives from the Supreme Court.

A brief reading of Plaintiffs’ complaint shows it is clear that Plaintiffs claim

their injuries were caused by the Defendants, rather than the state-court judgment. 

Plaintiffs’ claims include allegations of false affidavits, insufficient notice, and

failure to show standing. (Doc. # 2 at 16). All of Plaintiffs’ claims are based on

alleged conduct of the Defendants. Furthermore, the claims presented by Plaintiffs

were not raised or addressed in the state-court action and are therefore independent

claims permissible under Rooker–Feldman. Accordingly, Plaintiffs claim is not

barred under the Rooker–Feldman Doctrine.

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Fletcher, 2011 WL 5175611, at *2-4. See also Whittiker v. Deutsche Bank Nat’l Trust Co., 605

F. Supp. 2d 914, 920-22 (N.D. Ohio 2009). Under this analysis, the preclusive effect of the

Rooker-Feldman doctrine that proved dispositive in Dunn would not apply in the case sub

judice.

This does not mean, however, that this Court could necessarily proceed to address the

merits of Plaintiff’s claims, or at least his Count I claim for temporary and permanent injunctive

relief. Additional analysis in Fletcher provides:

Although the Rooker–Feldman Doctrine does not prevent this Court from

exercising jurisdiction, preclusion prevents the Court from providing Plaintiffs the

relief they seek. The difference is that preclusion is not a jurisdictional matter. 

Exxon–Mobil, 544 U.S. at 293.

The Full Faith and Credit Act, 28 U.S.C. § 1738, requires federal courts to,

“give the same preclusive effect to a state-court judgment as another court of that

State would give.” Id. at 293 (citing Parsons Steel, Inc. v. First Alabama Bank, 474

U.S. 518, 523, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986)). Furthermore, 18 U.S.C. §

1257 provides that only the United States Supreme Court shall have authority to

review final judgments rendered by a state’s highest court. “Because the Supreme

Court was specifically given jurisdiction to hear appeals from final judgments of the

highest state courts, lower federal courts do not have jurisdiction to review such

judgments.” Peiper v. Am. Arbitration Ass’n, 336 F.3d 458, 461 (6th Cir. 2003)

(citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103

S.Ct. 1303, 75 L.Ed.2d 206 (1983)).

Plaintiffs state in their prayer for relief, “I want the Court to stop all

impending action against my home. I want the Court to vacate all actions the

Defendant prevailed using false affidavits.” (Doc. # 2 at 16). As a court of original

jurisdiction, this Court lacks the authority to vacate a state-court judgment. See

Feldman, 460 U.S. at 483.

Fletcher, 2011 WL 5175611, at *4. This latter analysis, subsequently adopted by a district judge

in Fletcher v. Federal National Mortgage Association, No. 3:11cv083, 2011 WL 5191392, at *1

(S.D. Ohio Oct. 31, 2011), arguably informs the Court’s disposition of the issues Plaintiff has

placed before the Court. See also Whittiker, 605 F. Supp. 2d at 921 n.5 (“Efforts to litigate in

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federal courts matters previously litigated in state court may be barred on other grounds,

however, such as claim and issue preclusion even if Rooker-Feldman does not divest the district

court of subject matter jurisdiction over those claims.”). 

Plaintiff does not expressly include invalidation of the state foreclosure judgment in the

prayer for relief in his complaint. Some of Plaintiff’s claims target money damages. But the

first count of his complaint makes it abundantly clear that the relief he pursues goes beyond

simply money damages and seeks to disturb the state court foreclosure judgment:

17. This is an action for emergency-temporary and permanent injunctive relief on

an emergency basis and without notice.

18. The specific facts set forth in this complaint demonstrate that unless a temporary

injunction against the eviction is granted, Plaintiff will suffer the irreparable injury,

loss, and damage of the loss of his home.

(ECF No. 2 ¶¶ 17-18.) Such pleading echoes the federal court action impermissibly sought in

Fletcher. 

This Court cannot provide Plaintiff the injunctive relief he wants without interfering with

the disposition of issues tied to the state action and without ultimately invalidating the judgment

of foreclosure. It does not matter in terms of disposition whether the Rooker-Feldman doctrine

rationale of Dunn or the preclusion rationale of Fletcher applies here. The end result is the

same. Under either analysis, this Court is unable to grant Plaintiff a stay of the sheriff’s sale, and

that is a conclusion sufficient to dispose of the injunctive relief motion. See Baker v. People’s

Choice Home Loan, Inc., No. 3:10-cv-327, 2010 WL 3447614, at *2-3 (S.D. Ohio Aug. 27,

2010) (noting problem with determining source of injury in foreclosure injunction case and

concluding that “[o]n the basis of the evidence before it, this Court cannot determine definitively

whether its subject matter jurisdiction is ousted by the Rooker-Feldman doctrine or whether the

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action is barred on the merits by res judicata. However, it is clear that Plaintiff has not

established that it is likely she will prevail on the merits.”). See also Murphy v. JP Morgan

Chase, No. 3:11-cv-77, 2011 WL 6122642, at *4 (S.D. Ohio Dec. 8, 2011) (alternatively

applying Rooker-Feldman and res judicata to dismiss foreclosure case); Willis v. Chase Home

Fin., No. 5:10 CV 1494, 2010 WL 3430712, at *2 (N.D. Ohio Aug. 30, 2010) (same). 

Even if this Court were wholly incorrect and the Dunn or Fletcher approaches do not

apply here, the request for injunctive relief still fails. The fact that an appeal of a state court

judgment of foreclosure is permitted and the nature of that judgment arguably both point to

treating the state action as essentially if not technically concluded so that any related federal case

such as the instant case would be asking the federal court to assume impermissibly the role of a

reviewing court. Some federal courts, however, have regarded foreclosure state court

proceedings in which there has been a judgment of foreclosure but no sheriff’s sale yet to be

ongoing. This would implicate abstention under Younger v. Harris, 401 U.S. 37 (1971), as

Defendants argue over Plaintiff’s protests.

In Younger, the United States Supreme Court held that federal court abstention is

appropriate where, absent bad faith, harassment, or a patently invalid state statute, a plaintiff

invokes federal jurisdiction for the purpose of restraining state criminal proceedings. In other

words, Younger “advised federal courts to abstain from deciding a matter that would be properly

before them but for the pendency of state criminal proceedings in the matter.” Tesmer v.

Granholm, 333 F.3d 683, 688 (6th Cir. 2003) (citing Younger, 401 U.S. at 43-45), rev’d on other

grounds, Kowalski v. Tesmer, 543 U.S. 125 (2004). The Younger doctrine, “which applies to an

action seeking injunctive relief, applies as well to prohibit an action seeking declaratory relief

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when a state criminal prosecution is pending.” Id. (citing Samuels v. Mackell, 401 U.S. 66, 73

(1971)). The United States Supreme Court has also held that the doctrine applies to civil

matters. Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986);

Middlesex County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423 (1982).

The Sixth Circuit Court of Appeals has explained that there are “[t]hree requirements . . .

for proper invocation of the Younger doctrine: (1) there must be on-going state judicial

proceedings; (2) those proceedings must implicate important state interests; and (3) there must

be an adequate opportunity in the state proceedings to raise constitutional challenges.” Sun

Refining & Marketing Co. v. Brennan, 921 F.2d 635, 639 (6th Cir. 1990) (citing Middlesex

County Ethics Comm’n, 457 U.S. at 432). The Court finds that if the state foreclosure action is

regarded as ongoing, each requirement for invocation of the doctrine exists here.

Numerous federal cases exist in which judges have applied Younger when a plaintiff

seeks to prevent an impending sheriff’s sale related to a state foreclosure. See, e.g., Willis, 2010

WL 3430712, at *1 (explaining that absent extraordinary circumstances, Younger applies in

cases where there is a pending foreclosure action). Plaintiff nonetheless argues that “there is no

ongoing state court proceeding” here. (ECF No. 10, at 3.) As noted, this Court understands that

argument, but notes that it only suggests application of Rooker-Feldman and preclusion as

discussed above. Assuming that the execution of the foreclosure judgment presents ongoing an

proceeding, this proceeding was ongoing at the time Plaintiff filed his complaint (and in fact

remains ongoing), the second prong of the first requirement of Younger. Although the postforeclosure judgment state proceeding can be regarded as essentially ancillary developments that

simply effectuate execution of that judgment via the subsequent order of sale, they nonetheless

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involve activity that will result in a confirmation of sale order being filed. There is ongoing state

court activity. 

It is beyond dispute is that state foreclosure proceedings present issues that matters of

state interest. Doscher v. Menifee Cir. Ct., 75 F. App’x 996, 997 (6th Cir. 2003); Kaplan, 2011

WL 2039111, at *2. This satisfies the second prong of Younger. 

Finally, there is no factual basis in the record before this Court permitting the conclusion

that Plaintiff did not have an adequate opportunity to raise his challenges to the foreclosure as

part of the ongoing state proceedings. The record is largely silent on this issue, although review

of the exhibits attached to Defendants’ memorandum in opposition even indicate that Plaintiff

participated in the state foreclosure proceedings with the same counsel who represents him in

this federal case. This is thus not an instance in which “ ‘state law clearly bars the interposition

of constitutional claims.’ ” Middlesex County Ethics Comm’n, 457 U.S. at 432 (quoting Moore v.

Sims, 442 U.S. 415, 426 (1979)). 

The burden is on Plaintiff to demonstrate that “ ‘state procedural law barred presentation

of [his] claims.’ ” Tesmer, 333 F.3d at 689 (quoting Armco, Inc. v. United Steelworkers of Am.,

280 F.3d 669, 692 (6th Cir. 2002)). But Plaintiff has offered no evidence to indicate that he was

unable, or that he even attempted, to raise his challenges in the state forum. This point is

significant, because “ ‘[w]hen a litigant has not attempted to present [his] federal claims in

related state-court proceedings, a federal court should assume that state procedures will afford an

adequate remedy, in the absence of unambiguous authority to the contrary.” Wong-Opasi v.

Haynes, 8 F. App’x 340, 343 (6th Cir. 2001) (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,

15 (1987)). 

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The Court also concludes that Plaintiff has failed to demonstrate that declining to apply

Younger would be appropriate by pointing to any requisite “extraordinary circumstance” that

would make abstention unjust. See Middlesex County Ethics Comm’n, 457 U.S. at 435

(identifying extraordinary circumstances as bad faith, harassment, or a patently invalid state

statute). 

Under Younger, this Court cannot afford Plaintiff the injunctive relief he seeks. See Sun

Refining & Marketing Co., 921 F.2d at 639 (“when a case is properly within the Younger

category of cases, there is no discretion on the part of the federal court to grant injunctive relief”

(citing Colorado River Water Conservation District v. United State, 424 U.S. 800, 816 n. 22

(1976))). Cf. Wong-Opasi, 8 F. App’x 340 (holding Younger abstention appropriate to § 1983

action in which plaintiff sought a temporary restraining order). The fact that the Younger

doctrine would preclude the exercise of jurisdiction in this action also means that the Court could

sua sponte dismiss the action, or at least part of the case. See American Family Prepaid Legal

Corp. v. Columbus Bar Assoc., 498 F.3d 328 (6th Cir. 2007) (upholding dismissal predicated on

Younger abstention). Other judicial officers have dismissed foreclosure-related actions based on

Younger abstention. See, e.g., Kaplan, 2011 WL 2039111, at *2. The survival of Count I is

notably suspect. See Doscher, 75 F. App’x at 997 (affirming dismissal of a complaint that asked

a district court to block a foreclosure sale). The Court declines to dismiss sua sponte any portion

of Plaintiff’s case at this time. There will be time enough for additional orders or motions

practice to address any such basis for dismissal. 

Alternatively, Defendants also argue that the Anti-Injunction Act, 28 U.S.C. § 2283,

precludes issuance of the temporary restraining order that Plaintiff seeks. Another judicial

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officer has explained the applicable rationale as follows:

Title 28 U.S.C. § 2283, the Anti–Injunction Act states, in full, that “[a] court

of the United States may not grant an injunction to stay proceedings in a State court

except as expressly authorized by Act of Congress, or where necessary in aid of its

jurisdiction, or to protect or effectuate its judgments.” Unless the injunction falls

within one of the three specifically defined exceptions, the Act creates an absolute

prohibition against enjoining state court proceedings, Atlantic Coast Line R.R. Co.

v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 286–87, 90 S.Ct. 1739, 26 L.Ed.2d 234

(1970), abrogation on other grounds as recognized by Ark Blue Cross & Blue Shield

v. Little Rock Cardiolaogy Clinic, P.A., 551 F.3d 812, 821–22 (8th Cir. 2009). The

party pursuing the injunction bears the burden of establishing that the injunction falls

within one of the exceptions. Smith v. Encore Credit Corp., 623 F. Supp. 2d 910,

918-19 (N.D. Ohio, 2008). There is no indication that any of the exceptions apply

here. S ee Sherman v. Saxon Mortg. Services, Inc. 2010 WL 2465459, 6 (W.D. Tenn.,

Jun 14, 2010) (if the foreclosure action is still pending in state court, Plaintiffs’

prayer for relief from the foreclosure is precluded by the Anti–Injunction Act).

Kaplan v. Fitzgerald, No. 1:11CV0945, 2011 WL 2039111, at *1 (N.D. Ohio May 24, 2011). 

Assuming that there is still an ongoing state court proceeding as discussed above, the AntiInjunction Act would apply. See Tropf v. Fidelity Nat’l Title Ins. Co., 289 F.3d 929, 941 (6th

Cir. 2002). And because Plaintiff has failed to meet his burden of establishing that his injunction

request falls under a permissible exception, the Kaplan rationale also supports denial of the

requested injunctive relief. See also Haller v. U. S. Dep’t pf Housing & Urban Dev., No. 1:11-

CV-881, 2011 WL, at *2 (S.D. Ohio Dec. 28, 2011); Ogle v. BAC Home Loans Serv. LP, No.

2:11-cv-540, 2011 WL 3838169, at *3 (S.D. Ohio Aug. 29, 2011).

Finally, the Court notes that even if the Dunn or Fletcher approaches do not apply here,

and even if Younger abstention or application of the Anti-Injunction Act are not warranted, the

request for injunctive relief still fails on the merits. Plaintiff has failed to demonstrate a strong

likelihood of success on the merits, the first prong of the injunctive relief inquiry. Plaintiff

asserts in conclusory fashion that he paid his mortgage continuously, that it was not properly

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credited, and that he was never provided notice of the transfers of his note and mortgage from

the original holder and to the servicer MGC and sub-servicer Dovenmuehle. But the affidavit of

MGC Vice President Jeffrey Tschirhart and its supporting documentary business records

evidence indicate that Hohenstein was provided with notice of the transfer of loan servicing, that

he had made paid to Defendants, and that he defaulted on his mortgage loan. (ECF No. 9-3.) 

These documents undercut much of what Plaintiff has pled in his complaint and argued in his

briefing without support other than his own self-serving affidavit. There is thus a conflict in the

evidence. In light of this conflict, the Court of course cannot conclude that Plaintiff has

demonstrated a substantial likelihood of prevailing on his claims. The first factor weighs against

granting injunctive relief.

Plaintiff has similarly failed to establish that he will suffer irreparable injury in the

absence of equitable relief. In an affidavit that is perhaps more properly construed as a

declaration, Plaintiff asserts that if the sheriff’s sale takes place, he will “face eviction and will

essentially be homeless.” (ECF No. 4-1, Hohenstein Aff. ¶ 6.) “Essentially” is a qualification

that undercuts a representation imbued with the necessary certainty. Moreover, although this

Court recognizes the subjective emotional issues surrounding the loss of a residence, the Court is

cognizant that “although Plaintiff[] face[s] what could be the imminent removal from [his] home,

[he] ha[s] not shown that [he] will suffer irreparable harm from the occurrence of that event.” 

Fletcher v. Fed. Nat’l Mortg. Ass’n, No. 3:11cv00083, 2011 WL 1337422, at *3 (S.D. Ohio Mar.

18, 2011). Rather, “if [Plaintiff] eventually prove[s] one or more violations of [his] legal rights,

[he] may be entitled to recover monetary/compensatory damages.” Id. The Sixth Circuit has

explained that “a plaintiff’s harm is not irreparable if it is fully compensable by money

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damages.” Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992).

Because neither of the first two factors in the injunctive relief inquiry weigh in Plaintiffs’

favor, this Court will not discuss the remaining two factors, which implicate some complicated

issues upon which little argument and essentially no evidence was presented. See, e.g., Baker,

2010 WL 3447614, at *4 (“It is impossible to tell whether the public interest favors stopping one

more foreclosure sale in an area of the nation with an extraordinary burden of such sales at the

present or whether, instead, the health of the residential real estate market might be boosted by

rapid enforcement of mortgage obligations.”). Additionally, having concluded that the request

for a temporary injunction fails on multiple grounds, this Court need not and will not discuss

Defendants’ remaining alternative arguments against injunctive relief.

III. Conclusion

The Court DENIES Plaintiff’s motion for a temporary restraining order. (ECF No. 4.) 

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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